CSHB 2557 Update

THSC has been diligently working to get the Texas Parental Rights Restoration Act (HB 2557) voted out of the House Judiciary and Civil Jurisprudence Committee for the last two weeks. As a result of concerns raised by a number of members of the committee, we have made two significant redrafts of the bill, and the latest has been presented to the committee as a “Committee Substitute,” which we expected to be voted out of committee this week, but that has not happened for various reasons.

We now have written support for the redrafted version from seven of the eleven committee members: Chairman, Representative Jim Jackson; Representative Connie Scott, Representative Jerry Madden, Representative Dwayne Bohac, Representative Will Hartnett, Representative Tryon D. Lewis, Representative Richard Pena Raymond, and Representative Joaquin Castro. If one of these legislators represents you, please send them a note of thanks for supporting the effort to restore parental rights in Texas through CSHB 2557! Those members who have not yet given us an answer regarding their support are: Representative Beverly Wooley, Representative Sarah Davis, and Representative Sefronia Thompson. If one of these legislators represents you, please call his or her office and ask them to support CSHB 2557 to protect single parents and children. If you don’t know who your state representative is go here. Our current information is that the bill will be voted out of committee on May 2, and time is beginning to be very short for moving this bill.

We have made significant changes to the bill, but it continues to contain the major change that family law attorneys believe will protect single parents from protracted lawsuits by grandparents, lawsuits that bankrupt families and cause great harm to children. Under current law grandparents must prove that denial of access or possession to the grandchildren would “significantly impair the physical health and well-being of the child.” However, the law also allows a judge to enter temporary orders that can and often do include access and/or possession of the child by the grandparents while the case lingers on for years without a final hearing.

CSHB 2557 would not allow any temporary orders by a court and would require a hearing, within 45 days, in which the grandparents must meet the burden of proof as stated above. This change would end the practice of attorneys dragging cases on for years with the goal of bankrupting the single parent and winning by default. The bill also includes language requiring payment of legal fees by grandparents who file such suits frivolously or with the goal of harassing the parent.

We have notified The Texas Family Law Foundation lobbyist each time we have made changes to the bill to resolve concerns raised by legislators. In each case, we have been told that they will not support any change and that in their view there is no problem. Below is my last response to them.

Steve:

Thanks for your kind words. We do, however, continue to disagree on several points. As a former judge and member of the Texas Family Law Foundation (TFLF) said, “The current statute is hardly deferential to fit parents,” and that is why members of TFLF and former judges support the changes in CSHB 2557. Let me share some of their comments:

“Last session’s amendments went a long way but not far enough. If those amendments really did limit the abuse, then we would not have so many mandamus cases where the courts have abused their discretion. There are plenty of published appellate decisions reversing a court for giving temporary possession to grandparents absent a grandparent meeting their burden.”

“People often make allegations in affidavit and then for whatever reason can’t prove them. If the grandparent alleges facts that may look like a significant impairment will be proved, the court is not going to dismiss the suit, in spite of what the grandparent and TFLF would hope would happen. In those instances we still need the 45 day hearing to see whether in fact the grandparent can prove those facts. If the grandparent has sufficient evidence, they will probably set the hearing sooner than the 45 days. The grandparent must have the hearing before ANY visitation is awarded. Presumably they would be in a hurry.”

“On the other hand, if the point of the suit is to bully the parent into agreeing to what the grandparent knows he won’t be able to obtain at a hearing, then this limits that type of abuse. It also nips in the bud costly discovery, the appointment of the ad litem and any other temporary orders not involving access such as those contained in local standing orders that dictate where the parent can live.”

“TFLF’s position that there is no problem also fails to take into consideration the large number of cases where parents just give up because they cannot afford to pursue mandamus relief. Courts notoriously split the baby and order social studies before they make a decision, psych evaluations, etc, meanwhile giving the grandparent access. Then, the real damage begins, with grandparents frequently alienating the children from their parents and interfering in day-to-day parenting decisions. Also, unfortunately, the word ‘possession’ means standard possession to judges and lawyers who don’t think it through.”

“The Scheller case recently ruled on by the Texas Supreme Court and currently pending before the U.S. Supreme Court, illustrates this when the court reversed the lower court’s decision on grandparent access while allowing to stand the courts orders requiring the parent to comply with the ‘recommendations’ of a psychologist. This is of course because a court has wide discretion in a suit involving a child which allows such abuse under this statute. This cannot be what the legislature had in mind when it adopted the grandparent access statute and must be addressed.”

“Because of the nature of the rights being infringed upon, an early hearing is essential in order that the process itself does not infringe upon the fit parents right to raise his or her child and determine associations. Attorneys representing grandparents should not be filing these cases unless they can meet their burden. Attorneys, however, do file them even when they know they cannot meet their burden and more often than not, as alternative claim for relief in a SAPCR, seeking custody. Then, the courts more often than not give access as way to give the grandparents something. This happens every day at every courthouse. Once it is done, it can take years to undo the damage as therapists will acknowledge.”

CSHB 2557 will go a long way in ending the abuse of the process while protecting the right of fit parents and still allowing grandparents the right to seek access or possession.

Last night we were told that TFLF lobbyists had heard that we had the votes to move the bill out of committee and they visited each committee office with a paper explaining why they oppose our latest efforts. This was, of course, an effort to stop the bill from coming out of committee. Please contact your legislator if they are on the committee.

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